The Logic of Secession

The Logic of Secession Self-determination is the legitimating myth for modern nation- states.1 Despite its radical implications for restructuring international political authority, the doctrine of self-determination has functioned primarily to facilitate the breakup of colonial empires2 and to validate the norm of popular consent in the disposition of territory. 3 As the era of decolonization draws to a close, leaving in its wake an in- creasingly pluralistic and interdependent world, the right of self- determination is certain to be invoked in a variety of new situations. Among the most problematic demands for self-determination will be those for secession. Claims for separation from an existing nation fundamentally challenge the long-established principle of territorial integrity4 and highlight the failure of the state system to provide mechanisms for the orderly emergence of new communities. Yet, be- cause the individual's right to choose the community he regards as optimal for his development is a fundamental social value,5 the demands 1. See pp. 804-07 infra; U.N. CHARTER art. 1, para. 2 (principle of equal rights and self- determination); id. art. 55 (same); Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, 15 U.N. GAOR, Supp. (No. 16) 66, U.N. Doc. A/4684 (1960) (right of peoples to self-determination) [hereinafter cited as Res. 1514(XV)]; R. EMERSON, FROM EMPIRE TO NATION (1960). 2. See p. 804 infra; Res. 1514(XV), suPra note I (unanimous General Assembly resolution, annually reaffirmed, proclaiming necessity of bringing unconditional end to colonialism); A. SUREDA, THE EVOLUTION OF THE RIGHT OF SELF-DETERMINATION 58-94 (1973) (discussing evolving General Assembly competence to determine whether territory is non-self-governing and whether claim to exercise self-determination exists, including recommendations on Algeria, French Somaliland, Gibraltar, Rhodesia). 3. See Advisory Opinion on Western Sahara, [1975] I.C.J. 12 (holding application of principle of self-determination and Res. 1514(XV), supra note I, to Western Sahara peoples paramount over evidence of past legal and historical ties to Morocco and Mauritania); I S. WAMBAUGH, PLEBISCITES SINCE THE WORLD WAR 3-45 (1933) (attempts to observe principle of self-determination among border populations after -World War I). 4. See U.N. CHARTER art. 2, para. 4 ("All Members shall refrain . from the threat or use of force against the territorial integrity or political independence of any state ...); Island of Palmas Case (United States v. Netherlands), 2 R. Int'l Arb. Awards 829, 839 (1928) ("Territorial sovereignty ... involves the exclusive right to display the activities of a State.") 5. See J. MILL, Considerationson Representative Government, in 19 COLLECTED WORKS OF JOHN STUART MILL 547 (J.Robson ed. 1977) ("one hardly knows what any division of the human race should be free to do if not to determine with which of the various collective bodies of human beings they choose to associate themselves"); cf. McDougal, Lasswell, & Chen, Nationality and Human Rights: The Protection of the Individual in External Arenas, 83 YALE L.J. 900, 903 (1974) (utmost voluntarism in individual's affilia- tion, participation, and movement is long-term goal). 802 Secession of peoples0 for recognition, freedom of association, and equal participation in the international order must be directly confronted. This Note suggests that when the associational right of a group 7 to determine its political existence conflicts with an existing state's right of noninterference, the right of secession is paramount so long as that exercise of self-determination does not abridge the rights of other groups to self-determination.8 The right of secession thus allows for an adjustment of the institutions of civil government to evolving con- cepts of group identity-an adjustment that grants primary importance to the value of self-definition. The Note outlines factors useful in identifying and resolving secessionist claims, and demonstrates their use in assessing Somali demands for self-determination in the Ogaden. I. From Self-Determination to Secession All questions of statehood are grounded in the tension between two conflicting principles of nationality: territorial integrity and self-determination.9 Territorial integrity is a functional means of defining existing nations; it ensures order, stability, and finality in relations between states. 10 Self-determination responds to social change and to 6. A people is an alignment of individuals from different social classes and occupa- tions, united by intensive social and economic communication. The interaction between a people's subjective, cultural symbols and objective economic factors of communication, and the interplay between a people and its environment, enable one to identify roughly both the physical and psychological extent of community ties. The degree to which a people strives to acquire power for itself influences the formality of its political and social organizations as well. See K. DEUTSCH, NATIONALISM AND SOCIAL COMMUNICA- TION 70-80 (1953); C. GEERTZ, After the Revolution: The Fate of Nationalism in the New States, in THE INTERPRETATION OF CULTURES 249-52 (1973). 7. Like all human rights, self-determination is based in the individual; this particular right, however, acquires meaning only when asserted as part of a group. 8. Ideally, secessionist claims should encourage both increasing participation in one's community and increasing equality among groups, thus fostering an environment in which self-determination can be exercised most meaningfully. At a minimum, no group can deny the existence of another group. See pp. 818-19 infra. 9. Compare Res. 1514(XV), suPra note 1, para. 2 (all peoples have right to self- determination) with id. para. 6 (any attempt aimed at disruption of territorial integrity is incompatible with purposes of U.N. Charter). Both principles are fundamental United Nations norms. See U.N. CHARTER art. 1, para. 2 (principle of self-determination of peoples); id. art. 2, paras. 4, 7 (principles of territorial integrity and nonintervention). 10. See Temple of Preah Vihear Case, [1962] I.CJ. 6, 34 ("In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality."). Although territorial integrity and noninterference are the linch- pins of the present state system, they are not absolutes. See, e.g., Fisheries Jurisdiction Case, [1974] I.C.J. 3, 22-28 (state's unilateral competence over its territory and right to noninterference may be moderated due to positions and concerns of other states); Asylum Case, [1950] I.C.J. 265, 274-75 (diplomatic asylum entails derogation from territorial sovereignty of host state). The Yale Law Journal Vol. 89: 802, 1980 developments in people's identification systems; it is a fundamental ethic of the twentieth century, affirming the right of people to choose and control their own destiny.1 Resolution of a secessionist claim involves a choice between these competing norms. A. Self-Determinationas a FundamentalRight Self-determination has appeared in two historical guises in this century. After World War I, self-determination was in theory granted to nationalities that had previously lacked political form. The victorious Allies, however, usually did no more than ratify accomplished facts arising out of the situation of disorder in the defeated countries.12 The principle was restricted in two regards: it applied only to the van- quished powers, 13 and only historically recognized ethnic groups were considered natural political entities.' 4 Self-determination was a political principle, not a legal right.15 After World War II, self-determination emerged as a fundamental principle in the United Nations Charter' and provided the basis for the decolonization of Africa and Asia. Yet, the inherited political boundaries of the emerging nations continued to constrain the scope of self-determination' 7 The contradiction between the two phases is notable. The Wilsonian era assumed that the characteristics of the population involved were 11. See note I supra; G.A. Res. 1541, 15 U.N. GAOR, Supp. (No. 16) 29, U.N. Doc. A/4684 (1960) (implementing Res. 1514(XV), supra note 1) [hereinafter cited as Res. 1541(XV)]; Suzuki, Self-Determination and World Public Order: Community Response to Territorial Separation, 16 VA. J. INT'L L. 779, 785-89 (1976) (self-determination involves making and breaking of states as community demands change). 12. See A. COBBAN, NATIONAL SELF-DETERMINATION 22-23 (1945) (emergence of Czecho- slovakia and Yugoslavia represented political realities, not actual wishes of peoples). 13. See id. at 19, 22. 14. See id. at 21 (fundamental weakness in Wilson's conception of self-determination was "failure to realize how indeterminate a criterion nationality might be"); cf. W. OFUATEY-KoDJOE, THE PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAw 30-31 (1977) (national determinism theory postulates "one nation: one state," with each state ethnically homogeneous). 15. See LEAGUE OF NATIONS O.J., Spec. Supp..3, at 5 (1920) (resolution of Aaland Islands dispute between Finland and Sweden held right of free self-determination not "rule of international law and the League of Nations has not entered it in its covenant"). 16. See U.N. CHARTER art. 1, para. 2; art. 55. 17. See Resolution on Border Disputes, O.A.U. Doc. AHG/Res. 16(I) (1964), reprinted in I. BROWNLIE, BAsIC DOCUMENTS ON AFRICAN AFFAIRS 360 (1971) (accepting borders as they existed on date of independence); R. EMERSON, SELF-DETERMINATION REVISITED IN THE ERA OF DECOLONIZATION 28 (1964) (identifying three elements in self-determination formula within decolonization context: all dependent peoples are entitled to freedom; peoples so entitled are defined in terms of existing colonial territories, each of which contains one nation; once such a people has come to independence, no residual right of self-determination remains within any group, either within or cutting across its frontiers).

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